116 Ohio App.3d 363, 688 N.E.2d 278


Court of Appeals of Ohio,
Twelfth District, Butler County.
CHIC PROMOTION, INC., Appellant,
v.
MIDDLETOWN SECURITY SYSTEMS, INC.; Ademco, Appellee. [FN*]


FN* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was
not allowed in (1997), 78 Ohio St.3d 1457, 677 N.E.2d 816.



No. CA96-06-109.
Decided Dec. 9, 1996.

Jewelry business sued security company and manufacturer of phone-monitored
security system after burglars bypassed system. The Court of Common Pleas,
Butler County, granted manufacturer's motion for summary judgment. Business
appealed. The Court of Appeals, Koehler, J., held that: (1) security system
was not defective for failure to conform to representations in sales
brochure; (2) assertions in sales brochure did not cross line from puffing
to warranty; and (3) components of security system were not defective on
ground that manufacturer failed to warn that system would not live up to its
attributes without dedicated phone line.
Affirmed.


West Headnotes

[1] KeyCite Notes

372 Telecommunications
372IV Special Services or Activities
372k463 k. Alarm Systems. Most Cited Cases

Even if manufacturer's sales brochure for phone-monitored security system
failed to recommend dedicated telephone line and that omission amounted to
misrepresentation of product on which owner of jewelry business relied,
business failed to establish that lack of dedicated line was proximate cause
of injury resulting from burglary, and thus security system was not
defective for failure to conform to representations made by manufacturer.
R.C. § 2307.77.

[2] KeyCite Notes

313A Products Liability
313AI Scope in General
313AI(A) Products in General
313Ak7 k. Representations or Concealment. Most Cited Cases

Plaintiff seeking to recover for injury from product allegedly defective due
to nonconformity with manufacturer's representations must prove: (1) that
manufacturer made representation as to material fact concerning character or
quality of manufacturer's product, (2) that product did not conform to that
representation, (3) that plaintiff justifiably relied on that
representation, and (4) that plaintiff's reliance on representation was
direct and proximate cause of plaintiff's injuries. R.C. § 2307.77.

[3] KeyCite Notes

343 Sales
343VI Warranties
343k259 Making and Requisites of Express Warranty
343k261 Statements Constituting Warranty
343k261(6) k. Statements as to Kind, Quality, Condition, or Value.
Most Cited Cases

Manufacturer's assertions in sales brochure for security system did not
cross line from puffing to warranty, where brochure was presale inducement
to people to purchase the product, customer was relatively sophisticated,
manufacturer clearly anticipated consumer contact with dealer, and brochure
did not describe any particular configuration but was general description of
various components of system and their utilization. R.C. § 1302.26(A)(1, 2),
(B).

[4] KeyCite Notes

343 Sales
343VI Warranties
343k255 k. Parties; Privity. Most Cited Cases

Where there is express warranty, ultimate consumer may recover even with
absence of direct privity of contract.

[5] KeyCite Notes

372 Telecommunications
372IV Special Services or Activities
372k463 k. Alarm Systems. Most Cited Cases

Components of security system were not defective on ground that manufacturer
failed to warn in its literature that system would not live up to its
attributes without dedicated phone line, where purchaser was aware that
system was phone-monitored system, manufacturer provided general warning
that telephone lines used to carry alarm signals could be compromised or out
of service, security company provided manual containing warning to
purchaser, and purchaser did not establish that lack of dedicated line
proximately caused harm. R.C. § 2307.76(A).

[6] KeyCite Notes

313A Products Liability
313AI Scope in General
313AI(A) Products in General
313Ak14 k. Warning or Instructions. Most Cited Cases

Manufacturer provided inadequate warnings if it knew or by exercising
ordinary care reasonably should have known of risk associated with product
and failed to take reasonable precautions against risk; standard of care was
identical whether applied in strict products liability or negligence. R.C. §
2307.76(A)(1).
Scheper & McGowan and Jack C. McGowan, Hamilton, for appellant.
Rindigs, Fry, Kiely & Dennis, Edward R. Goldman and Ralph F. Mitchell,
Cincinnati, for appellee.


KOEHLER, Judge.
Plaintiff-appellant, Chic Promotions, Inc., appeals a decision of the Butler
County Common Pleas Court granting summary judgment in favor of
defendant-appellee, Ademco, a division of Pittway Corporation. We affirm.
Appellant is a Hamilton, Ohio corporation engaged in the buying and selling
of jewelry at wholesale and retail. The corporation does business from a
building located at 11 Rowe Court, Hamilton, Ohio. In August 1991, after
some prompting from an insurance agent to upgrade the building's security
system, appellant's vice-president, Gary Hubbard, called Middletown
Security, Inc. [FN1] for an estimate on a new security system. [FN2]
Middletown Security sales representative Oral Duncan made a sales call to
appellant's premises and met with Gary Hubbard. Appellant's president, Gary
Hubbard's wife, Tedi Hubbard, was not present during this meeting.


FN1. Middletown Security, Inc. was a defendant in the proceedings
below but is not a party to this appeal.



FN2. The existing security system was an AudioVox phone-monitored system
which Gary Hubbard installed on the premises.


Duncan made a sketch of the premises and spoke with Gary Hubbard about what
type of equipment could be placed at various locations in the building.
Duncan indicated to Gary Hubbard that the proposed system was a
phone-monitored system, in that Middletown Security's central office would
monitor the system for alarms via appellant's telephone line.
Along with a proposal for a security system, Duncan gave Gary Hubbard a
sales brochure for the Vista XM security system manufactured by Ademco. The
Vista XM control panel and key pad comprised two of the ten components in
the security system recommended by Duncan. Tedi Hubbard approved the
purchase of the security system after talking with Gary Hubbard and
reviewing the product literature. Middletown Security installed the security
system at appellant's location on August 29, 1991.
In April 1992, burglars bypassed appellant's security system by cutting the
phone line and disabling the exterior siren. Appellant sustained a loss of
jewelry, cases, and equipment as a result of the burglary. Appellant
subsequently filed a product liability suit against Middletown Security and
against Ademco as a component manufacturer. Ademco filed a motion for
summary judgment, arguing that its sales brochure statements did not
constitute an express warranty and that the Ademco components were
functioning properly on the night of the burglary.
The trial court granted Ademco's motion, concluding that there was "no
defect in the ADEMCO product which proximately caused the burglar alarm
system to fail," and:
"The sales brochure, in this case, does not create an express warranty, and
even if it did, there is no evidence presented from which any reasonable
trier of fact could find that there was a breach of the express warranty
which proximately caused the damages claimed by the plaintiff [appellant]."
Appellant raises the following as its sole assignment of error on appeal:
"The trial court erred to the prejudice of plaintiff-appellant in granting
the motion for summary judgment of the defendant-appellee where triable
issues of express warranty and proximate cause existed based upon a sales
pamphlet upon which plaintiff-appellant relied."
Pursuant to Civ.R. 56(C), summary judgment is properly granted when it is
shown that there is no genuine issue of material fact, that the movant is
entitled to judgment as a matter of law, and reasonable minds can come to
but one conclusion, which is adverse to the nonmovant. Harless v. Willis Day
Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d
46, 47. The evidence must be construed most strongly in favor of the
nonmovant. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 88, 585 N.E.2d
384, 389.
Once the moving party has satisfied its initial burden to show that there is
no genuine issue of material fact and that he is entitled to judgment as a
matter of law, the nonmoving party must "produce evidence on any issue for
which that party bears the burden of production at trial." Wing v. Anchor
Media, Ltd. (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of
the syllabus.
[1] Appellant argues first that the components manufactured by Ademco were
defective because they did not conform to the representations made in the
sales brochure. Pursuant to R.C. 2307.73(A), a claimant may recover
compensatory damages based upon a product liability claim if the claimant
establishes by a preponderance of the evidence both that the product is
defective because it did not conform to the manufacturer's representation
and that the defect proximately caused the harm for which the claimant seeks
damages.
R.C. 2307.77 provides:
"A product is defective if it did not conform, when it left the control of
its manufacturer, to a representation made by that manufacturer. A product
may be defective because it did not conform to a representation even though
its manufacturer did not act fraudulently, recklessly, or negligently in
making the representation."
[2] A plaintiff seeking to recover under R.C. 2307.77 for injury from a
product allegedly defective due to nonconformity with manufacturer's
representations must prove:
"1. that the manufacturer made a representation as to a material fact
concerning the character or quality of the manufacturer's product;
"2. that the product did not conform to that representation;
"3. that the plaintiff justifiably relied on that representation; and
"4. that the plaintiff's reliance on the representation was the direct and
proximate cause of the plaintiff's injuries." Gawloski v. Miller Brewing Co.
(1994), 96 Ohio App.3d 160, 165, 644 N.E.2d 731, 734.
Tedi Hubbard testified by deposition that she relied on representations in
the Vista XM sales brochure such as the following:
"1. [T]he XM * * * can deliver security that's six times better than
average.
"2. XM can be connected to a central security station that continually
monitors your system * * *.
"3. XM is an electronic fortress of security safeguards.
"4. Any alarm * * * is directly relayed by wire or wireless to a central
monitoring station.
"5. [Y]ou can have an uncompromisingly optimal security system * * * your
dealer can select from an unprecedented variety of alarm responses
customizing the system to your precise needs and operating circumstances.
"6. Ademco is the world's most respected name in security components * * *."
Tedi Hubbard testified that to her knowledge, the system could not operate
as represented without a dedicated phone line.
Oral Duncan testified by deposition that he advised Gary Hubbard that the
system was hooked into the phone line and that, if the line was cut,
Middletown Security would not receive an alarm signal, although the exterior
siren would still go off. Duncan also stated that at the time appellant's
system was installed, Middletown Security did not have cellular backup
available for telephone line monitoring.
Gary Hubbard recalled at deposition that Duncan told him that the system was
a "phone monitored system." In reference to appellant's current security
system installed by another company after the burglary, the following
exchange occurred:
"Q. [By Ademco counsel Edward Goldman] What happens if somebody cuts the
dedicated phone line?
"A. [By Gary Hubbard] I honestly couldn't tell you. I haven't had anybody
cut it.
"Q. Did you ask the question?
"A. I'm sure I did. I'm sure I did.
"Q. Well, if you did, do you know what answer you got?
"A. I really don't remember what he told me. I think he told me that it was
monitored through their home office. About the same thing that Mr. Duncan
told me."
Considering the factors enumerated in Gawloski, 96 Ohio App.3d at 165, 644
N.E.2d at 734-735, and construing the evidence most favorably to appellant,
we find that even assuming that the Ademco sales brochure failed to
recommend a dedicated line and that that omission amounted to a
misrepresentation of the product on which appellant relied, appellant has
failed to set forth specific facts establishing that the lack of a dedicated
telephone line was the proximate cause of appellant's injury. See Dresher v.
Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273-274 (if moving
party satisfies initial burden of demonstrating lack of evidence to support
nonmoving party's claim, nonmoving party has reciprocal burden under Civ.R.
56[E] to set forth specific facts showing a genuine issue for trial). Given
appellant's failure to come forward with an essential element of its prima
facie case, appellant's argument that the security system was defective
under R.C. 2307.77 is not well taken.
[3] Second, appellant argues that the Ademco sales brochure constitutes an
express warranty under R.C. 1302.26(A)(1) and (2), which provide:
"(A) Express warranties by the seller are created as follows:
"(1) Any affirmation of fact or promise made by the seller to the buyer
which relates to the goods and becomes part of the basis of the bargain
creates an express warranty that the goods shall conform to the affirmation
or promise.
"(2) Any description of the goods which is made part of the basis of the
bargain creates an express warranty that the goods shall conform to the
description."
[4] Where there is an express warranty, the ultimate consumer may recover
even with an absence of direct privity of contract. Rogers v. Toni Home
Permanent Co. (1958), 167 Ohio St. 244, 4 O.O.2d 291, 147 N.E.2d 612,
paragraph three of the syllabus. In Rogers, however, the Ohio Supreme Court
also stated:
"Many of these manufactured articles are shipped out in sealed containers by
the manufacturer, and the retailers who dispense them to the ultimate
consumers are but conduits or outlets through which the manufacturer
distributes his goods. The consuming public ordinarily relies exclusively on
the representations of the manufacturer in his advertisements." (Emphasis
added.) Id. at 248, 4 O.O.2d at 294, 147 N.E.2d at 615.
Further, R.C. 1302.26(B) provides that "an affirmation merely of the value
of the goods or a statement purporting to be * * * the seller's opinion or
commendation of the goods does not create a warranty."
In this case, Ademco clearly anticipated consumer contact with a dealer, as
opposed to the retailer being a mere conduit for goods which left the
manufacturer in sealed packaging. This is reinforced by a boldface heading
in the Ademco brochure which states, "Talk it over with a professional."
In addition, the substantive advertising claims in the brochure speak in
terms of what the Vista XM "can" do, and the text indicates that "your
dealer can select from a variety of alarm responses, customizing the system
* * *." The brochure does not describe any particular configuration, but is
a general description of the various components of the system and their
utilization. The phrase "fortress of security" does not appear within the
text of the brochure, but in a large headline on one page.
We find in this case that reasonable minds could only conclude that Ademco's
assertions in the Vista XM sales brochure did not cross the line from
puffing to warranty. The brochure was a presale inducement to people to
purchase the Ademco product, which is the very purpose of advertising.
Gawloski, 96 Ohio App.3d at 167, 644 N.E.2d at 735-736. Further, Gary
Hubbard was a relatively sophisticated consumer, having previously purchased
a basic phone-monitored security system for the business which he installed
himself. Appellant's argument as to express warranty through the sales
brochure is not well taken.
[5] [6] Finally, appellant argues that the Ademco components were defective
because Ademco failed to warn in its literature that the system would not
live up to its attributes without a dedicated phone line. [FN3] Ademco
provided inadequate warnings if it knew or by exercising ordinary care
reasonably should have known of a risk associated with the product and
failed to take reasonable precautions against the risk. R.C. 2307.76(A)(1);
Crislip v. TCH Liquidating Co. (1990), 52 Ohio St.3d 251, 257, 556 N.E.2d
1177, 1182-1183. The standard of care is identical whether applied in strict
products liability or negligence. Id.


FN3. R.C. 2307.76(A) provides:


"Subject to divisions (B) and (C) of this section, a product is defective
due to inadequate warning or instruction if either of the following applies:


"(1) It is defective due to inadequate warning or instruction at the time of
marketing if, when it left the control of its manufacturer, both of the
following applied:


"(a) The manufacturer knew or, in the exercise of reasonable care, should
have known about a risk that is associated with the product and that
allegedly caused harm for which the claimant seeks to recover compensatory
damages;


"(b) The manufacturer failed to provide the warning or instruction that a
manufacturer exercising reasonable care would have provided 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."


In this case, appellant was aware that the security system it was purchasing
was a phone-monitored system. The system that it replaced was also
phone-monitored and did not have a dedicated phone line. At the time the
system was installed, Middletown Security did not have cellular backup or
remote telephone line monitoring capability.
Ademco provided a general warning with its equipment that stated that the
telephone lines used to carry the alarm signals could be subject to
compromise or could be out of service. Middletown Security acknowledged
receiving the user's manual containing the warning because it acknowledged
that it provided the manual to appellant with the system.
Ultimately, as we stated in response to appellant's first argument,
appellant did not put forth any evidence that the lack of a dedicated
telephone line proximately caused the harm for which appellant seeks
recovery in this case. Therefore, we hold that the product was not defective
due to an inadequate warning. See Brown v. McDonald's Corp. (1995), 101 Ohio
App.3d 294, 299, 655 N.E.2d 440, 443 (to recover for defective product due
to lack of or inadequate warning, plaintiff must show that the injury
proximately resulted from breach of a duty to warn).
Construing the evidence most favorably to appellant, reasonable minds could
not differ in concluding that the Vista XM was not defective and that the
manufacturer's sales brochure did not constitute an express warranty.
Therefore, summary judgment was appropriate in this case, and the assignment
of error is overruled.
Judgment affirmed.

WILLIAM W. YOUNG, P.J., and POWELL, J., concur.
Ohio App. 12 Dist.,1996.
Chic Promotion, Inc. v. Middletown Sec. Sys., Inc.
116 Ohio App.3d 363, 688 N.E.2d 278
END OF DOCUMENT