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DEVRY UNIVERSITY
3005 HIGHLAND PKWY
DOWNERS GROVE, IL 60515-5799

Terms: (Nadel v. Burger King Corp., 1997 Ohio App. LEXIS 2144)

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7 of 8 DOCUMENTS

CHRISTOPHER NADEL, by and through his next friend, BRENDA NADEL, his natural mother, EVELYN NADEL, and PAUL NADEL, Plaintiffs-Appellants, v. BURGER KING CORPORATION and EMIL, INC., Defendants-Appellees.

APPEAL No. C-960489

COURT OF APPEALS OF OHIO, FIRST APPELLATE DISTRICT, HAMILTON COUNTY

119 Ohio App. 3d 578; 695 N.E.2d 1185; 1997 Ohio App. LEXIS 2144

May 21, 1997, Date of Judgment Entry On Appeal
May 21, 1997, Filed

NOTICE: [***1] THESE ARE NOT OFFICIAL HEADNOTES OR SYLLABI AND ARE NEITHER APPROVED IN ADVANCE NOR ENDORSED BY THE COURT. PLEASE REVIEW THE CASE IN FULL.

SUBSEQUENT HISTORY: As Corrected August 27, 1998.

PRIOR HISTORY: Civil Appeal From: Hamilton County Court of Common Pleas. TRIAL NO. A-9502757.

DISPOSITION: Judgment Appealed From is: Affirmed in Part, Reversed in Part and Cause Remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiffs, a child and his mother, grandmother, and father, challenged a judgment of the Hamilton County Court of Common Pleas (Ohio) which granted summary judgment to defendants, a restaurant franchisor and franchisee, in plaintiff's action in breach of warranty, products liability, and negligence for injuries plaintiff child received when a cup of defendants' coffee spilled in plaintiffs' vehicle.

OVERVIEW: Plaintiff child was burned by spilled restaurant coffee. Plaintiffs, the child and his mother, grandmother, and father, filed an action in breach of warranty, products liability, and negligence against defendants, the restaurant franchisor and franchisee. The trial court granted the motions of both defendants for summary judgment. Plaintiffs appealed. The court affirmed in part and reversed in part. The spilled coffee was not so unforeseeable as to constitute an intervening cause. Summary judgment was proper for the breach of warranty claims because they were pre-empted by the Ohio Products Liability Law. Summary judgment was wrongly granted on the products liability and related punitive damage claims. Issues of fact remained as to whether the coffee was defective due to the heat at which it was served and whether an adequate warning existed. Because the alleged failure to warn involved a product, not premises, summary judgment was properly granted as to premises liability. Plaintiffs' claims of emotional damage were inadequate to support their claim of negligent infliction of emotional distress. The action was remanded for further proceedings.

OUTCOME: The court affirmed the grant of summary judgment to defendants, a restaurant franchisor and a franchisee, as to claims by plaintiffs, a child and his mother, grandmother, and father, of breach of warranty, premises liability, and negligent infliction of emotional distress. Summary judgment was reversed as to the products liability and punitive damage claims because of fact issues as to whether the coffee that burned plaintiff child was defective.

CORE TERMS: coffee, hot, summary judgment, products liability, warning, manufacturer, burn, warranty, emotional distress, spilled, intervening, temperature, supplier, cup, superseding causes, container, foot, defective product, failure to warn, compensatory damages, obvious risk, handling, consumer, brewed, lid, particular purpose, nonmoving party, merchantability, unreasonably, misconduct

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Appellate Review > Standards of Review Civil Procedure > Summary Judgment > Burdens of Production & Proof > General Overview Civil Procedure > Summary Judgment > Standards > Genuine Disputes [HN1] In order to prevail on a motion for summary judgment, a movant has the burden to demonstrate that no genuine issue of material fact remains to be litigated; that it is entitled to judgment as a matter of law, and that it appears from the evidence, when viewed most strongly in favor of the nonmoving party, that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants Civil Procedure > Summary Judgment > Burdens of Production & Proof > Nonmovants Civil Procedure > Summary Judgment > Evidence

[HN2] Where a moving party is seeking summary judgment on the basis that a nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party's claim by specifically pointing to some evidence of the type listed in Fed. R. Civ. P. 56 which affirmatively demonstrates that the nonmoving party has no evidence to support its claim. Once this burden is met, the nonmoving party must then produce evidence on the issues for which it bears the burden at trial, by setting forth specific facts by the means listed in Fed. R. Civ. P. 56(c), demonstrating the existence of a triable issue of fact.

Torts > Negligence > Causation > Proximate Cause > Intervening Causation [HN3] Only a reasonably unforeseeable action may constitute an intervening, superseding cause.

Commercial Law (UCC) > General Provisions (Article 1) > General Overview Contracts Law > Breach > Causes of Action > Breach of Warranty Contracts Law > Sales of Goods > Warranties > General Overview [HN4] The Ohio Products Liability Law preempts warranty claims. Ohio Rev. Code Ann. § 2307.72; Ohio Rev. Code Ann. § 2307.73. Ohio Rev. Code Ann. § 2307.72(A) states that any recovery of compensatory damages based on a product liability claim is subject to the Ohio Products Liability Law.

Torts > Products Liability > Duty to Warn
[HN5] See Ohio Rev. Code Ann. § 2307.73(A).

Torts > Products Liability > Strict Liability
[HN6] See Ohio Rev. Code Ann. § 2307.71(M).

Torts > Products Liability > Strict Liability
[HN7] A claim for personal injuries caused by a product's failure to conform due to a defect is governed solely by the Ohio Products Liability Law.

Torts > Products Liability > Breach of Warranty
Torts > Products Liability > Design Defects
[HN8] The law in Ohio governing design-defect claims states that defective designs are those in which the foreseeable risks exceed the benefits, or those that are more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

Torts > Products Liability > Breach of Warranty
[HN9] The determination of whether a design defect exists is a question of fact.

Civil Procedure > Discovery > Methods > General Overview
Civil Procedure > Summary Judgment > Opposition > Memoranda in Opposition Evidence > Documentary Evidence > Writings > General Overview [HN10] Fed. R. Civ. P. 56(c) allows a trial court to consider only pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact in deciding a summary-judgment motion. The proper procedure for introducing evidentiary material not specifically authorized by the rule is to incorporate such material by reference in a properly framed affidavit.

Civil Procedure > Summary Judgment > Opposition > General Overview Civil Procedure > Summary Judgment > Supporting Materials > General Overview Evidence > Authentication > General Overview

[HN11] The proper procedure for introducing evidentiary material not specifically authorized by Fed. R. Civ. P. 56(c) is to incorporate such material by reference in a properly framed affidavit. Documents submitted in opposition to a motion for summary judgment which are neither sworn, certified, nor authenticated by affidavit have no evidentiary value.

Torts > Products Liability > Duty to Warn
[HN12] Ohio Rev. Code Ann. § 2307.76(B) provides that a product is not defective due to lack of warning as a result of the failure to warn about an open and obvious risk or a risk that is a matter of common knowledge.

Business & Corporate Law > Agency Relationships > Establishment > Elements > General Overview [HN13] A principal-agent relationship exists when one party retains a right to control the actions of its agent and those actions are directed toward the attainment of an objective which the former party seeks.

Business & Corporate Law > Agency Relationships > Duties & Liabilities > Authorized Acts of Agents > Liability of Principal Business & Corporate Law > Agency Relationships > Duties & Liabilities > Authorized Acts of Agents > Scope of Authority Torts > Vicarious Liability > Agents > General Overview

[HN14] Under the doctrine of respondeat superior, a principal is vicariously liable for the acts of its agent committed within the scope of the agency.

Torts > Products Liability > Strict Liability
[HN15] Under Ohio Rev. Code Ann. § 2307.71(I), a manufacturer is a person engaged in a business to design, formulate, produce, create, make, construct, assemble or rebuild a product or a component of a product.

Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty on Premises > Invitees > Business Invitees [HN16] While a claim of negligently failure to warn a business invitee of a danger usually is premised on the duty to maintain safe premises for a business invitee and to warn of a defect on the property, a business proprietor has a duty to exercise ordinary and reasonable care to warn an invitee of latent defects on the property of which the proprietor has knowledge or should have knowledge.

Torts > Negligence > Actions > Negligent Infliction of Emotional Distress > General Overview Torts > Products Liability > General Overview
[HN17] Negligent infliction of emotional distress is a claim based upon the negligence of one party creating actionable emotional distress in another.

Torts > Negligence > Actions > Negligent Infliction of Emotional Distress > Potential Plaintiffs [HN18] Where a bystander to an accident states a cause of action for negligent infliction of serious emotional distress, the emotional injuries sustained must be found to be both serious and reasonably foreseeable, in order to allow recovery. Serious emotional distress describes emotional injury which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.

Civil Procedure > Remedies > Damages > Punitive Damages
Torts > Damages > Compensatory Damages > Pain & Suffering > Emotional & Mental Distress > General Overview Torts > Products Liability > Design Defects
[HN19] Punitive damages in a products liability context are controlled by Ohio Rev. Code Ann. § 2307.801. To prevail, plaintiffs must demonstrate by clear and convincing evidence that they are entitled to compensatory damages on either their design-defect claim or their failure-to-warn claim, and that the harm was the result of misconduct of defendants, in their capacity as a manufacturer or supplier, that manifested a flagrant disregard for the safety of persons who might be harmed by the product involved. § 2307.801(A). Relevant factors include: (1) the likelihood that serious harm would arise from the misconduct of the manufacturer or supplier; (2) the degree of the awareness of the manufacturer or supplier of that likelihood; (3) the duration of the misconduct and any concealment of it by the manufacturer or supplier; (4) the attitude and conduct of the manufacturer or supplier upon the discovery of the misconduct and whether the misconduct has terminated; and (5) the financial condition of the manufacturer or supplier. § 2307.801(B).

HEADNOTES
PRODUCTS LIABILITY-CIVIL MISCELLANEOUS

SYLLABUS
When a child suffered second-degree burns from coffee that spilled into his shoe after it was purchased at a fast-food restaurant, the trial court: (1) properly granted summary judgment to the defendants on claims of breach of warranty of merchantability and breach of warranty of fitness for a particular purpose, because these claims are pre-empted by R.C. 2307.72(A); (2) improperly granted summary judgment to the defendants on products liability claims of design defect and failure to warn because genuine issues of material fact remain whether the coffee was so hot that its risks outweighed its benefits under R.C. 2307.75(A); whether the coffee was so hot that it was not as safe as an ordinary consumer would expect under R.C. 2307.75(A); and whether the risk of second-degree burns was an unforeseen danger that required a [***2] warning under R.C. 2307.76(A); (3) properly granted summary judgment to the defendants on claims of negligence by failing to warn business invitees of latent defects of the property because the sale of hot coffee was not a latent defect of the property; (4) properly granted summary judgment to the defendants on claims of negligent infliction of emotional distress, because the record contains no evidence of serious emotional distress; and (5) improperly granted summary judgment to the defendants on claims of punitive damages relating to the pending products liability claims, because the defendants failed to point to anything in the record to show that no issue of fact remains with respect to the punitive claims under R.C. 2307.801(A). But, see, DISSENT: The severity of an injury alone is insufficient to defeat summary judgment on products liability claims, where no defect is demonstrated by the evidence, and the risk of burns from hot coffee is open and obvious and therefore requires no warnings.

COUNSEL: Edward J. Felson, Esq., No. 0041988, and Stephen R. Felson, Esq., No. 0038432, 36 East Seventh Street, Suite 1650, Cincinnati, Ohio 45202, for Plaintiffs-Appellants.

Jonathan [***3] P. Saxton, Esq., No. 0042280, 900 Central Trust Tower, Fourth and Vine Streets, Cincinnati, Ohio 45202, for Defendant-Appellee Burger King Corporation.

Droder & Miller Co., L.P.A., A. Dennis Miller, Esq., No. 0018721, and Kevin J. Ryan, Esq., No. 0018748, 125 West Central Parkway, Cincinnati, Ohio 45202, for Defendant-Appellee Emil, Inc.

JUDGES: DOAN, P.J., CONCURS. HILDEBRANDT, J., CONCURS IN PART and DISSENTS IN PART.

OPINION BY: PAINTER

OPINION
[*582] [**1187] OPINION.
PAINTER, J.
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 [***4] order included [**1188] 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.

1 We have sua sponte removed this case from the accelerated calendar.

[*583] Evelyn testified that she tasted the coffee in the cup on the right side of the container, by raising the flap on its lid, and found it too hot to drink. She also testified that the lid of the coffee "jiggled off" and burnt her on her right leg after she lifted the flap. After bending the flap of the lid so that it was closed, Evelyn returned the cup, covered by the lid, to the container. She then either started to place the container of coffees on the floor next to Christopher's foot or placed the container on the dashboard, or she had already placed the container on the floor next [***5] to Christopher's foot, when Paul drove away from the restaurant, making a left turn onto a street. At that point Christopher began screaming that his foot was burned. Christopher, Paul, and Evelyn discovered that one or both of the cups had tipped, and that hot coffee had spilled on Christopher's right foot. Neither the cups, the lids, nor the container are in the record. Christopher was treated for second-degree burns on his right foot. In their complaint, the Nadels (Brenda Nadel is the mother of Christopher Nadel) raised several claims, including breach of a warranty of merchantability and breach of a warranty of fitness for a particular purpose, both based on the allegation that the coffee was too hot to consume; products liability for a defective product and a failure to warn of the dangers of handling liquid served as hot as appellees' coffee; and negligence both for failing to instruct employees how to properly serve hot coffee and for failing to warn business invitees of the danger of handling coffee at the temperature Emil's coffee was served. Emil moved for summary judgment, claiming that no genuine issue of material fact existed. In support of its claim, Emil cited to [***6] the deposition of Paul in which he testified that he knew that coffee is served hot, that he expected coffee to be served hot, and that he knew Emil's coffee was served hot, that coffee would burn someone if it was spilled on them and that whoever was handling hot coffee needed to be careful not to spill it. Evelyn testified that she knew the coffee that was spilled was hot, and that it had burned her. Emil's owner's affidavit averred that BK's operating manual required coffee to be served at approximately one-hundred-seventy-five-degrees, that the coffee machine thermostats were set at that temperature, and that Emil was unaware of any problems resulting from coffee being served at that temperature. BK also moved for summary judgment and pointed to evidence in the depositions that appellants knew the coffee was hot and that coffee was purchased and served as a hot beverage. It also contended under the circumstances that Evelyn's and Paul's actions were intervening, superseding causes precluding any actionable negligence on its part. In opposition to the motions for summary judgment, the Nadels argued that Emil and BK knew or should have known that second-degree burns could occur [*584] as a result of coffee [***7] served at one-hundred-seventy-five-degrees, because "the whole industry has long been aware of the danger of liquid this hot," and they cited to several journal articles in their supporting memorandum. The Nadels also attached the affidavit of their attorney with Christopher's medical records affixed, which averred that the medical records were true copies of what was received through discovery. The trial court granted both summary-judgment motions, and the Nadels appealed. The trial court based its judgment on its conclusion that Christopher's injury resulting from spilled hot coffee was, as a matter of law, the result of intervening, superseding causes attributable to Paul and Evelyn. Appellants raise two assignments of error, contending, respectively, that the trial court improperly granted both BK's summary-judgment motion and Emil's summary-judgment motion. We will address these assignments together, except in those instances where separate [**1189] treatment is warranted for the various claims alleged by the Nadels. II. Standard of Review for the Nadels' Claims [HN1] In order to prevail on a motion for summary judgment, a movant has the burden to demonstrate that no genuine issue of material fact remains [***8] to be litigated; that it is entitled to judgment as a matter of law, and that it appears from the evidence, when viewed most strongly in favor of the nonmoving party, that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 364 N.E.2d 267, 274. [HN2] Where a moving party is seeking summary judgment on the basis that a nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party's claim by specifically pointing to some evidence of the type listed in Civ.R. 56 which affirmatively demonstrates that the nonmoving party has no evidence to support its claim. Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293, 662 N.E.2d 264, 274. Once this burden is met, the nonmoving party must then produce evidence on the issues for which it bears the burden at trial, by setting forth specific facts by the means listed in Civ.R. 56(C), demonstrating [***9] the existence of a triable issue of fact. Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, 115, 526 N.E.2d 798, 801. III. Intervening CauseHere, the trial court granted summary judgment solely on the basis of its conclusion that Christopher's injury resulting from spilled hot coffee was, as a matter of law, the result of intervening, superseding causes attributable to Paul [*585] and Evelyn. [HN3] Only a reasonably unforeseeable action may constitute an intervening, superseding cause. See, e.g., Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St. 3d 266, 617 N.E.2d 1068. A spilled drink at fast-food windows or shortly after pulling away from fast-food windows occurs with enough frequency that it cannot be said to be so unforeseeable that it constitutes an intervening, superseding cause as a matter of law. 2 Therefore, the trial court erred when it held that the spill was an intervening, superseding cause on summary judgment. But we are permitted to affirm a correct judgment, even though it was entered for the wrong reason, as only prejudicial error is reversible. See, e.g., Cook v. Cincinnati (1995), 103 Ohio App. 3d 80, 658 N.E.2d 814, citing State ex rel. Carter v. [***10] Schotten (1994), 70 Ohio St. 3d 89, 637 N.E.2d 306. Therefore, we must examine each claim as to each party, and determine whether summary judgment was otherwise proper.

2 Intervening, superseding causes should not be confused with the editorial comments of the court in Reese v. Burger King Restaurant (Feb. 13, 1990), 1990 Ohio App. LEXIS 541, Franklin App. No. 89 AP-856, unreported, which noted that causes of action under facts such as these should be limited. The Reese court held as a matter of law that the Burger King employees did not act unreasonably. Quite so, unless the temperature of the coffee they brewed and served was unreasonably hot, in light of the knowledge that customers do spill drinks from time to time.

IV. Warranties of Merchantability and Fitness for a Particular PurposeThe Nadels' first claim alleges breaches of the warranty of merchantability and the warranty of fitness for a particular purpose. As no express contract is alleged between the parties, we assume the asserted warranties are implied warranties [***11] set forth by the Ohio Uniform Commercial Code. See R.C. 1302.27 and 1302.28. 3 But [HN4] [**1190] the Ohio Products Liability Law has preempted the Nadels' warranty claims. R.C. 2307.72; R.C. 2307.73; Saylor v. Providence Hospital (1996), 113 Ohio App. 3d 1, 680 N.E.2d 193, 1996 Ohio App. LEXIS 3150, Hamilton App. No. C-950413, unreported; Raitt, The Preemption and Economic Loss Provisions of the Ohio Product Liability Code (1991), 16 U.Dayton L.Rev. 583, 586-89; O'Reilly and Cody, Ohio Products Liability Manual (1992), 57, Section 5.05. R.C. 2307.72(A) states that "any recovery of compensatory damages [*586] based on a product liability claim" is subject to the Ohio Products Liability Law. [HN5] R.C. 2307.73(A) states:

(A) 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 [***12] in section 2307.76 of the Revised Code, or was defective because it did not conform to a representation made by the manufacturer as described in section 2307.77 of the Revised Code.

[AND]

(2) Subject to sections 2307.80, 2315.20, and 2323.59 of the Revised Code, a defective aspect of the product as described in division (A)(1) of this section was a proximate cause of harm for which the claimant seeks to recover compensatory damages.

[AND]

(3) The manufacturer designed, formulated, produced, created, made, constructed, assembled, or rebuilt the product. [Emphasis added.]

[HN6] R.C. 2307.71(M) defines a product liability claim as a claim: 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 involved, that allegedly arise from any of the following:

(1) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product;

(2) Any warning or instruction, or [***13] lack of warning or instruction, associated with that product;

(3) Any failure of that product to conform to any relevant representation or warranty.

Thus, [HN7] claims for personal injuries caused by a product's failure to conform due to a defect is governed solely by the Products Liability Law. LaPuma v. Collinwood Concrete (1996), 75 Ohio St. 3d 64, 661 N.E.2d 714. For a good explanation of the rationale behind this rule, see Raitt, The Preemption and Economic Loss Provisions of the Ohio Product Liability Code at 586-86, fn. 15 and 17. Thus, we conclude that summary judgment was [*587] proper for the claims for breach of warranties of merchantability and fitness for a particular purpose against both BK and Emil. 4

3 Prior to the enactment of the Ohio Products Liability Law, R.C. 2307.71 to R.C. 2307.80, Ohio case law also recognized a theory of implied warranty based not on contract, but instead on "an action in tort for strict product liability similar to that recognized by Section 402A of the Restatement (Second) of Torts." 1 Ferriell, Ferriell Commercial Code (1996) 175, Section 10.10. This implied-warranty claim is no longer a viable cause of action for compensatory damages for personal injury due to a defective product. Raitt, The Preemption and Economic Loss Provisions of the Ohio Product Liability Code (1991), 16 U.Dayton L.Rev. 583, 586-87, fn. 15 and 17. A cause of action in tort for implied warranty is recognized for solely economic damages caused by a defective product. LaPuma v. Collinwood Concrete (1996), 75 Ohio St. 3d 64, 661 N.E.2d 714.

4 But, see, Carrel v. Allied Products Corp. (1996), 78 Ohio St. 3d 284, 677 N.E.2d 795, which brings some of this rationale into question. However, we doubt that this case was intended to abrogate R.C. 2307.72(A) and 2307.73(A) in toto.

[***14] V. Products Liability

The Nadels argue two product liability claims: (1) design defect--that the coffee was excessively hot; and (2) the failure to warn of the danger of handling coffee served at that temperature. [HN8] The law in Ohio governing design-defect claims states that defective designs are those in which the foreseeable risks exceed the benefits, or those that are more dangerous than "an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." R.C. 2307.75(A)(1) and (2). 5 See Welch Sand and Gravel, Inc. v. O & K Trojan, Inc. (1995), 107 Ohio App. 3d 218, 224, 668 N.E.2d 529, 533. To support their claim that the temperature of the coffee constituted a defect, the Nadels presented evidence that the coffee was served at [***15] one-hundred-seventy-five-degrees [**1191] and that Christopher received second-degree burns when the coffee was spilled on him. The Nadels also provided, in their memorandum opposing summary judgment, citations to journals to support the allegation that one-hundred-seventy-five-degree coffee is excessively hot.

5 Note that the General Assembly has removed the consumer expectations test, leaving only the risk-benefit test for products designed after January 27, 1997.

Generally, [HN9] the determination of whether a design defect exists is a question of fact. See Welch Sand and Gravel, Inc., supra at 225, 668 N.E.2d at 534. Here, the question is not whether the Nadels expected it to be hot, but rather how hot did they, or a reasonable consumer in their shoes, expect the coffee to be. If the Nadels could show that a reasonable consumer would find that coffee brewed at one-hundred-seventy-five-degrees was unreasonably and excessively hot, and therefore that the coffee failed to be as safe as an ordinary consumer would expect, then a question of fact existed, and summary judgment was [***16] inappropriate. See, e.g., Leichtamer v. American Motors Corp. (1981), 67 Ohio St. 2d 456, 424 N.E.2d 568. But the Nadels have failed to produce any evidence that the coffee was hotter than it was expected to be aside from the second degree burns that Christopher Nadel suffered. The Nadels' citations to articles in their memorandum in opposition to summary judgment make interesting reading, but the articles have no evidentiary value. 6 [HN10] Civ.R. [*588] 56(C) allows a trial court to consider only "pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact," in deciding a summary-judgment motion. [HN11] The proper procedure for introducing evidentiary material not specifically authorized by the rule is to incorporate such material by reference in a properly framed affidavit. See Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App. 3d 220, 515 N.E.2d 632. Documents submitted in opposition to a motion for summary judgment which are neither sworn, certified, nor authenticated by affidavit have no evidentiary value. Green v. B.F. Goodrich Co. (1993), 85 Ohio App. 3d 223, 228, 619 N.E.2d [***17] 497. The articles cited by the Nadels are not even a part of the record, much less properly framed by an affidavit as required by the rule.

6 If the articles had evidentiary value, they might have at least served notice that the industry standard for coffee brewed at fast-food restaurants is roughly forty degrees hotter than coffee brewed in coffee machines at home.

Nevertheless, we are convinced that a jury is better equipped to determine whether consumers expect coffee to be so hot that it would cause second-degree burns when spilled, or that its risk of second-degree burns would outweigh its benefit. The fact that the coffee caused second degree burns is sufficient by itself to raise a factual issue whether the coffee was unreasonably hot, and therefore it is presently sufficient to defeat a motion for summary judgment. The Nadels' also claim that the coffee was defective because it failed even to contain a warning as to the danger of handling liquid served at one-hundred-seventy-five-degrees. BK and Emil, through the depositions [***18] of Evelyn and Paul, presented evidence that the Nadels knew the coffee was hot and that they had ordered it hot. But this knowledge is not dispositive, because the issue is not whether the coffee was hot or expected to be hot, but whether the coffee was so exceedingly hot that serving it without a warning of unforeseen danger was unreasonable. We believe that it is a question of fact whether second-degree burns can result from spilled coffee is an unforeseen danger, and perhaps this is the sum of our disagreement with the dissenting opinion, which believes that such possibilities are common knowledge. [HN12] R.C. 2307.76(B) provides that "[a] product is not defective due to lack of warning" as a result of the failure to warn about an open and obvious risk or a risk that is a matter of common knowledge. We are not so convinced that we will take judicial notice and remove this issue from a jury. We cannot conclude from the evidence before us that the hot coffee posed such an obvious danger of severe burns and that the Nadels were aware of such danger, although, with a more developed record, such facts could perhaps be demonstrated. [**1192] Thus, the issues of whether BK and/or Emil "knew or, in [***19] the exercise of reasonable care, should have known about a risk [second-degree burns] that is associated with the product * * * and whether BK and/or Emil failed to provide the warning that "a manufacturer exercising reasonable care would have provided [*589] concerning that risk, in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages and in light of the likely seriousness of the harm" should be reserved for the trier of fact. R.C. 2307.76(A). As to BK's motion for summary judgment, BK alleges that it is immune under the statute because it is not a manufacturer, seller, or supplier of the coffee under R.C. 2307.71. But Emil stated via affidavit that it brewed and sold the coffee pursuant to BK's specifications as required by the franchise agreement. [HN13] A principal-agent relationship exists when one party retains a right to control the actions of its agent and those actions are directed toward the attainment of an objective which the former party seeks. Hanson v. Kynast (1986), 24 Ohio St. 3d 171, 494 N.E.2d 1091, paragraph one of the syllabus. [HN14] Under the doctrine of respondeat superior, a principal is vicariously [***20] liable for the acts of its agent committed within the scope of the agency. Hanson, supra.

Because BK at least arguably retains control over such details as the temperature that the coffee must be brewed, Emil could be considered an agent of BK with respect to those details. [HN15] Under R.C. 2307.71(I), a manufacturer is "a person engaged in a business to design, formulate, produce, create, make, construct, assemble or rebuild a product or a component of a product." Emil makes the coffee to BK's specifications. Therefore, BK qualifies as a "manufacturer" under the statutory definition in R.C. 2307.71(I) for summary judgment purposes, when every factual benefit of the doubt is given to the Nadels. As to Emil's motion for summary judgment, Emil based its motion exclusively on its argument of intervening, superseding causation and the holding in Reese, supra. As we have already stated, these arguments are insufficient to sustain summary judgment on the failure-to-warn claim. In sum, we hold that both the design-defect claim and the failure-to-warn claim survive BK's and Emil's motions for summary judgment, because issues of fact remain whether the coffee was defective [***21] due to the heat at which it was served, and whether a warning existed, and if so, whether it was adequate. VI. Claim of Negligence Toward Business InviteesThe Nadels' next claim alleges that appellees violated their duty to the Nadels as business invitees by negligently failing to warn them of the danger of handling hot coffee. [HN16] While such a claim usually is premised on the duty to maintain safe premises for a business invitee and to warn of a defect on the property, see Albright v. Montgomery Inn, Inc. (Aug. 16, 1995), 1995 Ohio App. LEXIS 3342, Hamilton App. No. C-940747, unreported, a business proprietor has a duty to exercise ordinary and reasonable care to warn an invitee of latent defects on the [*590] property of which the proprietor has knowledge or should have knowledge. See Westwood v. Thrifty Boy (1972), 29 Ohio St. 2d 84, 86-87; 278 N.E.2d 673, 675; McGuire v. Sears, Roebuck and Co. (Sept. 25, 1996), 118 Ohio App. 3d 494, 693 N.E.2d 807, 1996 Ohio App. LEXIS 4168, Hamilton App. No. C-950745, unreported. Because the failure to warn here involves a product, it more reasonably falls under the rubric of products liability rather than premises liability. Thus, we hold that the summary judgment was properly granted in favor of BK and Emil on [***22] this claim. VII. Negligent Infliction of Emotional Distress [HN17] Negligent infliction of emotional distress is a claim based upon the negligence of one party creating actionable emotional distress in another. Heiner v. Moretuzzo (1995), 73 Ohio St. 3d 80, 652 N.E.2d 664, citing Schultz v. Barberton Glass Co. (1983), 4 Ohio St. 3d 131, 447 N.E.2d 109. In Paugh v. Hanks (1983), 6 Ohio St. 3d 72, 451 N.E.2d 759, the Ohio Supreme [**1193] Court stated in the pertinent part of paragraph three of the syllabus:

3. [HN18] Where a bystander to an accident states a cause of action for negligent infliction of serious emotional distress, the emotional injuries sustained must be found to be both serious and reasonably foreseeable, in order to allow recovery.

Serious emotional distress describes emotional injury which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.

* * * Here, Evelyn and Paul Nadel, Christopher's grandmother and father respectively, are the ones making claims for negligent [***23] emotional distress. Yet the only evidence of any emotional distress as a result of the incident is (1) Evelyn's statement that she was "worried," though not enough to seek psychological treatment; and (2) Paul's statement that while receiving psychological treatment for depression resulting from his divorce and stress, the incident "came up," although it was not a contributing reason for seeking or receiving counseling. Absent from the record is any showing of the type of emotional distress where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case. Therefore, the trial court properly granted summary judgment with respect to this claim. VIII. Punitive Damages [HN19] Punitive damages in a products liability context are controlled by R.C. 2307.801. See, e.g., Saylor, supra. In order to prevail, the Nadels must demonstrate by clear and convincing evidence that they are entitled to compensatory damages on either their design-defect claim or their failure-to-warn claim, and that the harm was the result of misconduct of BK, Emil, or both, in their [*591] capacity as a manufacturer or supplier, that [***24] manifested a flagrant disregard for the safety of persons who might be harmed by the product involved. R.C. 2307.801(A). Relevant factors include: (1) the likelihood that serious harm would arise from the misconduct of the manufacturer or supplier; (2) the degree of the awareness of the manufacturer or supplier of that likelihood; (3) the duration of the misconduct and any concealment of it by the manufacturer or supplier; (4) the attitude and conduct of the manufacturer or supplier upon the discovery of the misconduct and whether the misconduct has terminated; and (5) the financial condition of the manufacturer or supplier. R.C. 2307.801(B).

Although the record has little to support the Nadels' claim beyond the pleadings, the motions for summary judgment cite no specific reason based on the record for granting summary judgment on the punitive-damages claim as required under Dresher, supra. At this point, it is premature to grant summary judgment to either BK or Emil without further inquiry into these factors. IX. Conclusion

Accordingly, we affirm the trial court's summary judgment with respect to the claims based upon warranties of merchantability and fitness for [***25] a particular purpose, the claim of premises-related negligence and the claims of negligent infliction of emotional distress. With respect to the products liability claims and the related claims for punitive damages, we reverse the summary judgment and remand the cause for further proceedings consistent with this opinion on those claims. DOAN, P.J., CONCURS.

HILDEBRANDT, J., CONCURS IN PART and DISSENTS IN PART.

CONCUR BY: HILDEBRANDT (In Part)

DISSENT BY: HILDEBRANDT (In Part)

DISSENT

HILDEBRANDT, J., CONCURRING IN PART AND DISSENTING IN PART.
While I agree with the majority opinion as set forth in Sections III, V, and VI, I respectfully dissent from Sections IV and VII. The majority correctly notes that the Nadels failed to produce evidence beyond the burn-producing spill to defeat Emil's and BK's motions for summary judgment regarding the Nadels' claim that the coffee was a defective [**1194] product because its temperature was unreasonably and excessively hot. It holds nonetheless that the fact the coffee caused second-degree burns is sufficient to create a genuine issue of material fact as to whether the coffee was a defective product and "whether the coffee was so exceedingly hot that [***26] serving it without a warning was unreasonable." [*592] I disagree that the fact Christopher suffered second-degree burns is sufficient to establish the existence of a disputed issue of material fact as to whether the coffee was a defective product under either prong of the defective-design section of Ohio's Products Liability Act. R.C. 2307.75(a)(1) and (2). The fact that a product may cause injury does not mean that the product is defective. Accord Cincinnati Ins. Co. v. Volkswagen of America (1985), 29 Ohio App. 3d 58, 502 N.E.2d 651. A manufacturer need not make its product accident-proof or foolproof. It is "not an insurer that [its] product is, from a design viewpoint, incapable of producing injury." Gossett v. Chrysler Corp. (C.A.6 1966), 359 F.2d 84, 87. The majority opinion, by allowing the Nadels to meet their Civ.R. 56 burden by practically going no further than the mere allegation of wrongdoing creates an absolute liability on the manufacturer based on the fact an injury occurs when its product is used. To accept the majority opinion would mean one "would truly have reached the scenario envisioned by Justice Holmes in his dissent in Cremeans [v. International [***27] Harvester Co. (1983), 6 Ohio St. 3d 232, 238, 452 N.E.2d 1281, 1286] where ' * * * summary judgment for a defendant would never be possible since the plaintiff need only assert that a given product is defectively designed and that he was injured by it.'" King v. K.R. Wilson Co. (1983), 8 Ohio St. 3d 9, 11, 455 N.E.2d 1282, 1283. I also conclude that summary judgment was properly entered against the Nadels' on their failure-to-warn claim, because the fact that coffee is hot and can cause burns is an open and obvious risk. The evidence demonstrates that Evelyn and Paul knew the coffee was hot and that they had ordered it hot. In fact, coffee is usually served hot and allowed to cool before consumption. R.C. 2307.76(B) provides that "[a] product is not defective due to lack of warning" as a result of the failure to warn about "an open and obvious risk or a risk that is a matter of common knowledge." The majority opinion focuses on the severity of the injury as the crux of whether a warning is required. I believe that "risk" is not to be so liberally construed. It is not the severity of a specific injury which constitutes the open and obvious risk; the open and obvious risk is [***28] the "danger or potentiality for danger" that a product possesses, regardless of the innumerable degrees of severity of injury which might occur. See Restatement of the Law 2d, Torts (1965) 353, Section 402A, Comment j.

A manufacturer has no duty to warn of an obvious danger. Knives are sharp, bowling balls are heavy, bullets cause puncture wounds in flesh. The law has long recognized that obvious dangers are an excluded class. [Footnote deleted.] As the colorful Seventh Circuit Judge Richard Posner once wrote in an Indiana [*593] federal case, if you "go to the zoo and put your hand through the lion's cage, and the lion bites your hand off, * * * you do not have an action against the zoo".

O'Reilly and Cody, Ohio Products Liability Manual (1992), Section 10.13, 147. A knife may cause various degrees of injury ranging from the mere slicing of skin to the severing of a limb; however, the fact that the injury is a severing of a limb does not make the risk of causing some type of cutting any less obvious. Likewise coffee is served hot. The fact that its heat may cause a slight burn in some instances, or second-degree burns when, like in this case, the coffee is spilled [***29] and compressed between a child's sock and his skin for a period of time, does not make less obvious the risk that hot coffee purchased for consumption will burn upon contact with skin. 7 I would conclude [**1195] that hot coffee is an open and obvious risk which requires no warning. Cf. Koepke v. Crosman Arms Co. (1989), 65 Ohio App. 3d 1, 582 N.E.2d 1000 (no warning required regarding the dangers of firing a loaded BB gun toward a person); Gawloski v. Miller Brewing Co. (1994), 96 Ohio App. 3d 160, 644 N.E.2d 731 (dangers of prolonged and excessive use of alcohol is a danger within the body of common knowledge); Hanlon v. Lane (1994), 98 Ohio App. 3d 148, 648 N.E.2d 26 (no warning required of the danger of carbon monoxide where its lethality is a matter of common knowledge); Taylor v. Yale & Towne Manufacturing Co. (1987), 36 Ohio App. 3d 62, 520 N.E.2d 1375 (no claim for failure to warn where truck's propensity to spark was fairly obvious.).

7 Under the majority's analysis, a question is thus raised as to what warning would be adequate. Obviously, if the danger is the severity of possible injury and not the fact that the coffee is hot, a warning of "Caution! Hot Coffee!" is arguably inadequate. Would a manufacturer have to determine the most severe injury which could occur under all circumstances and provide a warning of that possibility, so that if the instant case constituted that situation a warning to be sufficient would need to advise "Warning! Hot Coffee Can Cause Second-Degree Burns If Spilled In Sock!"?

[***30] Because of my conclusion above, I also would overrule the Nadels' claims for punitive damages.

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