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Parker v. Ace Hardware Corp.

Court of Appeals of Ohio, Second Appellate District, Champaign County

January 26, 2018, Rendered

C.A. CASE NO. 2017-CA-8

Opinion

 [**299]  DONOVAN, J.

 [*P1]  This matter is before the Court on the April 17, 2017 Notice of Appeal of David A. Parker. Parker appeals from the trial court's March 17, 2017 journal entry granting the motion for summary judgment of ACE Hardware Corporation, McAuliffe's ACE Hardware, and McAuliffe's Rental LLC (collectively, "ACE"). We hereby affirm the judgment of the trial court.

 [*P2]  On March 20, 2015 Parker filed a complaint against ACE, Frederick Stevens, the Coleman Company Inc., and John Does 1-10, in the Franklin County Court of Common Pleas. In Count 1, Parker  [**300]  alleged negligence against Stevens; in Count 2, he alleged negligence against ACE; in Count 3, he alleged negligent misrepresentation against ACE; in Count 4 he alleged breaches of express and implied warranties against all defendants; and in Count 5, he alleged "a combined claim for damages under both strict liability and statutory strict products liability under [***2]  both Ohio common law and Ohio Revised Code §§ 2307.71-80" against all defendants except Stevens. On January 15, 2016, Parker dismissed all claims against Coleman and the products liability claim in Count 5. On March 16, 2016, Parker dismissed his claims against Stevens.

 [*P3]  The matter was subsequently transferred to Champaign County on Parker's request and refiled on August 19, 2016. The complaint sets forth the following allegations: Parker and Stevens became friends in 2010-2011, and when Stevens had surgery in 2013, Parker helped Stevens by clearing his property of brush and performing other chores. On September 8, 2013, after a significant amount of brush had been consolidated into a large pile, Stevens asked Parker to "stop at the hardware store to purchase five cans of kerosene * * * to be used to ignite and burn the brush pile."

 [*P4]  After having his chain saw serviced and repaired at McAuliffe's ACE Hardware, Parker inquired if he could also purchase kerosene for a brush fire, and a male employee directed Parker to "a female clerk down another aisle in the store and told [Parker] that she would assist him." Parker asked the female clerk for kerosene, and she inquired as to his intended use of the product. Parker [***3]  advised the clerk that he intended to "start a large brush fire about the size of a truck, and needed kerosene to start the fire." The clerk then directed Parker to a product that she identified as kerosene, and he purchase the product. The product was in fact Coleman Camp Fuel, and when Parker ignited the brush pile with the fuel, "vapors were ignited and quickly exploded and engulfed [Parker] in flames. [Parker] was severely burned over 90% of his body."

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2018-Ohio-320 *; 104 N.E.3d 298 **; 2018 Ohio App. LEXIS 371 ***; 2018 WL 566479

DAVID A. PARKER, Plaintiff-Appellant v. ACE HARDWARE CORPORATION, et al., Defendants-Appellees

Subsequent History: Discretionary appeal not allowed by Parker v. Ace Hardware Corp., 153 Ohio St. 3d 1433, 2018- Ohio 2639, 2018 Ohio LEXIS 1673, 101 N.E.3d 465 (Ohio, July 5, 2018)

Prior History:  [***1] (Civil Appeal from Common Pleas Court). T.C. NO. 16-CV-131.

CORE TERMS

warranty, Fuel, kerosene, supplier, manufacturer, abrogated, misrepresentation, proximately, brush, conform, compensatory, label, ignited, deposition, Hardware, claimant, pile, gratuitous

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Appeals, Summary Judgment Review, Standards of Review, Torts, Products Liability, Products Liability, Theories of Liability, Misrepresentation, Negligence, Pleadings, Complaints, Requirements for Complaint