[1] |
THE SUPREME COURT OF THE STATE OF OHIO
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[2] |
No. 81-1582
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[3] |
2 Ohio St.3d 193, 443 N.E.2d 978, 1983.OH.40004 <http://www.versuslaw.com>
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[4] |
January 05, 1983.
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[5] |
GOODSON
v. MCDONOUGH POWER EQUIP., INC. |
[6] |
Alfred J. Weisbrod Co., L.P.A., and Mr. Alfred J. Weisbrod, for
appellees.
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[7] |
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[8] |
This cause occasions the review and analysis of one aspect of
the doctrine of res judicata, that of collateral estoppel, as
it has been applied in Ohio, and whether the traditional general
rules as previously enunciated and followed should be applied
to cases involving claims of product defective design. Collateral
estoppel within the context of res judicata has been explained
by this court to be preclusion of the relitigation in a second
action of an issue or issues that have been actually and necessarily
litigated and determined in a prior action. Whitehead v. Gen.
Tel. Co. (1969), 20 Ohio St.2d 108 [49 O.O. 2d 435].
*fn4
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[9] |
Case law in Ohio concerning the general doctrine of res judicata
has long ago established the general principle that material
facts or questions which were in issue in a former suit, and
were there judicially determined by a court of competent jurisdiction,
are conclusively settled by a judgment therein so far as concerns
the parties to that action and persons in privity with them.
*fn5
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[10] |
As a requisite factor in the application of the principle of issue
preclusion within the doctrine of res judicata, Ohio cases over
the years in like manner have consistently held to the effect
that a judgment can operate as collateral estoppel only where
all of the parties to the proceeding in which the judgment is
relied upon were bound by the judgment. Expressions are found
within the cases that the record of a judgment, in order to preclude
either of the party litigants, must be preclusive upon both.
The operation of the rule must be mutual. If a judgment cannot
be effective as res judicata against a particular person, he
cannot avail himself of the adjudication and contend that it
is available against others, as between them and himself. Therein
liesthe general rule of mutuality of estoppel which has long
been applied by this court and other courts in Ohio.
*fn6
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[11] |
There being the general requisite of an identity of persons and
parties, or their privies, within the prior proceeding in order
for the judgment or decree to operate as an estoppel, strangers
to such a judgment or decree will not be affected thereby. Woodward
v. Moore (1862), 13 Ohio St. 136, 143; State, ex rel. Atty. Gen.,
v. Cincinnati Gas - Light & Coke Co. (1868), 18 Ohio St. 262,
299; Frank v. Jenkins Bro. & Chipman (1872), 22 Ohio St. 597,
paragraph four of the syllabus; Burt v. Wilcox Silver Plate Co.
(1884), 41 Ohio St. 204, 205. For all practical purposes, the
mutuality rule is coextensive with the requirement that the plea
of res judicata is available only to a party to the judgment
and to his privies. See, generally, Annotation, 31 A.L.R. 3d
1044.
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[12] |
In recent years there has been much discussion in case law and
law journals as to the legal viability of the application of
the strict doctrine of mutuality as a requisite to collateral
estoppel. Some courts throughout the country have abandoned the
doctrine in whole or in part. Some cases specifically reject
mutuality as it might be used either offensively or defensively,
and permit nonmutuality in the application of collateral estoppel.
*fn7
There. are also cases which only specifically allow, or the opinions
seemingly allow, the application of nonmutuality in its defensive
use.
*fn8
Other states, including Ohio (which cases will be referred to
hereinafter), have generally continued to adhere to the requirement
of mutuality in the application of collateral estoppel, with
varying exceptions.
*fn9
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[13] |
Some writers have criticized the continued use of the mutuality
principle,
*fn10
while other commentators and writers disagree with the critics
of the mutuality rule.
*fn11
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[14] |
There has been a differing view in the state and federal courts
as to the offensive versus the defensive use of the "nonmutuality
rule." Acceptance of the offensive use of the rule has been placed
in much greater question by most courts. See Spettigue v. Mahoney
(1968), 8 Ariz. App. 281, 445 P. 2d 557, and Reardon v. Allen
(1965), 88 N. J. Super. 560, 213 A. 2d 26.
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[15] |
In Reardon, the court, arguing against permitting the offensive
use of the doctrine of collateral estoppel in a nonmutuality
situation, stated that rejecting mutuality exposes a defendant
who is subject to multiple claims to considerable detriment;
that one disadvantage is that he must evaluate the risk of the
first case with an eye to those to come, including cases of adversaries
not yet known; and that another disadvantage may be illustrated
by the example of an accident involving a bus, train, or airplane
in which a number of passengers are injured. In elaboration of
the last argument it was said that if a judgment against the
defendant in the first action can be used by all other claimants,
the defendant must put up the most vigorous defense even when
the first action presents a minor claim. Annotation, 31 A.L.R.
3d, supra, at 1055-1056. See, also, IB Moore's Federal Practice,
Paragraph 0.412[1].
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[16] |
The use of "offensive collateral estoppel" in nonmutuality cases
in federal courts was sanctioned by the United States Supreme
Court in Parklane Hosiery Co. v. Shore (1979), 439 U.S. 322.
*fn12
However, even the court in Parklane pointed out that a party
may not invoke collateral estoppel without showing that precisely
the same issue was litigated in the prior action. White v. World
Finance of Meridian, Inc. (C.A. 5, 1981), 653 F. 2d 147: See,
generally, 18 Wright, Miller & Cooper, Federal Practice and ProceduresSection
4417 (1981). The burden of pleading and proving the identity
of issues rests on the party asserting the collateral estoppel.
Hernandez v. Los Angeles (C.A. 9, 1980), 624 F. 2d 935. Also,
Parklane left undisturbed the requisite of privity, i.e., that
collateral estoppel can only be applied against parties who have
had a prior "full and fair" opportunity to litigate their claims.
C. A. Hardy v. Johns - Manville Sales Corp. (C.A. 5, 1982), 681
F. 2d 334, 338.
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[17] |
The application of nonmutual collateral estoppel in federal courts
and other jurisdictions, permitting same in a subsequent action,
requires close scrutiny of the prior record and decision to identify
with precision what issues have in fact been actually litigated
and decided in the prior action. Although generally permitting
nonmutual collateral estoppel, the Restatement of Judgments 2d,
at Section 27, Comment c, sets forth the procedures to be followed
upon any consideration of such application. The Restatement states,
at page 252, that to inquire into the identity of the issue in
each case is one of the most difficult problems posed by issue
preclusion. The Restatement proposes an analysis using a variety
of factors to aid in making this crucial determination. Factors
to be considered are: (1) the existence of substantial overlap
between evidence and argument; (2) whether the new evidence or
argument involves application of the same rules of law; (3) whether
pretrial preparation and discovery reasonably could have been
expected to cover the new matters in the prior action; and (4)
the closeness of the relationship between the claims involved
in the two proceedings.
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[18] |
Upon a review and consideration of this process which is applied
in federal and other jurisdictions which have adopted nonmutuality
as a general rule for collateral estoppel, we must conclude that
there is within such procedure the suggestion that time-consuming
and costly investigations may well be necessitated into collateral
issues that may be essentially irrelevant to the actual issues
between the parties then present before the court. It seems that
these procedures would often offset any savings derived from
collateral estoppel, and may indeed increase the total amount
of litigation, negating one of the prime supportive arguments,
i.e., the economy of the judicial process.
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[19] |
As stated, Ohio has continued the requirement of mutuality for
the application of collateral estoppel, as a general principle,
even though recognizing the view of other states. Accordingly,
in Whitehead, supra, Justice Thomas M. Herbert stated, at page
113, in the opinion:
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[20] |
"* * * The requirement of mutuality has been lessened, in some
jurisdictions, by the expansion of the concept of privity and
the creation of explicit exceptions to the rule. Semmel, Collateral
Estoppel, Mutuality and Joinder of Parties (1968), 68 Columbia
L. Rev. 1457, 1458."
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[21] |
However, viewing the doctrine on balance, Justice Herbert concluded
for the court, at page 116, that:
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[22] |
"In our opinion, the existing Ohio requirement that there be an
identity of parties or their privies is founded upon the sound
principle that all persons are entitled to their day in court.
The doctrine of res judicata is a necessarsjudicial development
involving considerations of finality and multiplicity, but it
should not be permitted to encroach upon fundamental and imperative
rights. It is our conclusion that the rule advocated by the appellant
could create grave problems in establishing the adequacy of non-party's
representation in the prior suit and that the case at bar is
not one which should result in a departure from present Ohio
law."
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[23] |
The court of appeals here, and the appellees, point out that this
court has recently decided the case of Hicks v. De La Cruz (1977),
52 Ohio St.2d 71 [6 O.O.3d 274], which it is claimed varies from
the general rule as previously followed regarding the necessity
of mutuality of estoppel . It is argued by the appellees that
Hicks enunciates a new rule for Ohio, abandoning the mutuality
rule. In review of the particular facts surrounding the determination
in Hicks, and all of the pronouncements on the subject prior
to and subsequent to that case, we conclude that this court has
not, within the limited ruling of Hicks, abandoned the mutuality
rule, but has only shown that it is willing to relax the rule
where justice would reasonably require it.
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[24] |
Hicks arose out of an action for negligence brought against a
physician, the city of Cincinnati, the University of Cincinnati,
the board of trustees of the university, and Cincinnati General
Hospital. A motion for summary judgment was filed on behalf of
the city-defendants alleging that they had state governmental
immunity in the ownership and/or operation of the hospital. The
trial court granted defendants' motion and dismissed the case.
The court of appeals affirmed. On appeal to this court, the judgment
was reversed on the basis of the holding that collateral estoppel
precluded the defendants from relitigating the immunity issue.
This court relied on the prior case of Sears v. Cincinnati (1972),
31 Ohio St.2d 157 [60 O.O.2d 113], in which case the issue of
ownership and control of the same hospital was before the court
and it was determined that the hospital was a municipal institution
and subject to suit.
*fn13
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[25] |
In Hicks, this court did indeed decide that case within the context
of the Restatement of Judgments 2d, by referring in the opinion,
at page 74, ts"Restatement of the Law 2d, Judgments (Tent. Draft
No. 4 [1977]), Section 68, at page 1, and (Tent. Draft No. 2
[1975]), Section 88, at pages 89-90.11 However, we conclude that
such determination related only to the narrow issue of ownership
and control of the hospital, which determination would show the
status of the hospital for purposes of the application of sovereign
immunity. Such issue had specifically been addressed by this
court in the prior cause. The prior determination was not one
involving the liability of the city in its operation of the hospital,
but one of ownership and control, and, as to that issue, there
could be little question that the city previously had its day
in court. The city of Cincinnati would yet have its day in court
on the issue of liability under the facts to be presented in
the latter proceeding.
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[26] |
This court in effect was stating in Hicks that under those facts
where it was shown that the party defendant clearly had his day
in court on the specific issue brought into litigation within
the later proceeding, the non-party plaintiff could rely upon
the doctrine of collateral estoppel to preclude the relitigation
of that specific issue. We believe this exception to the principle
of mutuality to be a proper one.
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[27] |
Also, it is apparent that this court has not abandoned the principle
of mutuality by a review of cases that have been decided since
Hicks. The viability of the general rule of the identity or mutuality
of parties requirement is supported by a number of recent cases
in which the issue was central to the decisions reached by this
court. See Schomaeker v. First Natl. Bank (1981), 66 Ohio St.2d
304, 313 [20 O.O.3d 285]; Johnson v. Norman (1981), 66 Ohio St.2d
186, 190 [20 O.O.3d 196]; State, ex rel. Westchester, v. Bacon
(1980), 61 Ohio St.2d 42, 44 [15 O.O.3d 53]; Trautwein v. Sorgenfrei
(1979), 58 Ohio St.2d 493 [12 O.O.3d 403]; and Werlin Corp. v.
Pub. Util. Comm. (1978), 53 Ohio St.2d 76, 81 [7 O.O.3d 152].
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[28] |
In Trautwein, supra, Chief Justice Celebrezze, speaking for a
unanimous court and approving the second paragraph of the syllabus
in Whitehead, stated, at page 501:
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[29] |
"The application of the concept of collateral estoppel requires
an identity of both parties and issues. Whitehead, supra, at
page 113; Columbus v. Union Cemetery Assn. (1976), 45 Ohio St.2d
47 [74 O.O.2d 79]; Hicks v. De La Cruz (1977), 52 Ohio St.2d
71, 74 [6 O.O.3d 274]; Werlin Corp. v. Pub. Util. Comm. (1978),
53 Ohio St.2d 76, 81 [7 O.O.3d 152]. In ascertaining whether
there is an identity of such parties a court must look behind
the nominal parties to the substance of the cause to determine
the real parties in interest. State, ex rel. Hofstetter, v. Kronk
(1969), 20 Ohio St.2d 117 [49 O.O.2d 440], paragraph two of the
syllabus. Quoting Justice Douglas in State, ex rel. Hofstetter,
supra, at page 119, we indicated that "`* * * identity of parties
is not a mere matter of form, but of substance."' Sunshine Anthracite
Coal Co. v. Adkins, 310 U.S. 381, 402."'
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[30] |
The main legal thread which runs throughout the determination
of thsapplicability of res judicata, inclusive of the adjunct
principle of collateral estoppel, is the necessity of a fair
opportunity to fully litigate and to be "heard" in the due process
sense. Accordingly, an absolute due process prerequisite to the
application of collateral estoppel is that the party asserting
the preclusion must prove that the identical issue was actually
litigated, directly determined, and essential to the judgment
in the prior action. Norwood v. McDonald (1943), 142 Ohio St.
299 [27 O.O. 240]; First Natl Bank v. Berkshire Life Ins. Co.
(1964), 176 Ohio St. 395 [27 O.O.2d 360]; Ohio Finance Co. v.
McReynolds (1927), 27 Ohio App. 42. Collaterally estopping a
party from relitigating an issue previously decided against it
violates due process where it could not be foreseen that the
issue would subsequently be utilized collaterally, and where
the party had little knowledge or incentive to litigate fully
and vigorously in the first action due to the procedural and/or
factual circumstances presented therein. This latter point was
recognized in State, ex rel. Westchester, supra, paragraph two
of the syllabus, in which this court held that where there has
been a change in the facts since a prior decision, which either
raises a new material issue, or which would have been relevant
to the resolution of a material issue involved in the earlier
action, neither the doctrine of res judicata nor the doctrine
of collateral estoppel will bar litigation of that issue in a
later action.
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[31] |
In many cases within which a motion for summary judgment is presented
relying upon collateral estoppel, there may well have been attendant
elements in the prior cause which could materially have altered
the prior judgment, in which event the common party to the prior
cause should not be deprived of his right to a trial by jury
in the new cause. Any such deprivation would be an infringement
upon the right of the common party to a trial by jury. Even as
the rights of a new plaintiff will never be barred, in that he
has not had his day in court, it would be inappropriate to adopt
a principle of law that would infringe upon the defendant common
party's right to a trial by jury.
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[32] |
Many factors, considerations and elements enter into any judgment
of a court. There are the tangible, as well as the intangible,
elements which have their meaningful effect upon the result of
any cause, the nature of the claim and the claimants, as well
as the nature of the defendant; the amount involved in such claim;
the manner of the advocacy, often depending upon the amounts
involved in such cause; the philosophical elements surrounding
the cause; the agreed settlement, if any, in the matter; the
vast differences between juries and their determinations of issues
of liability and damages; and the unwillingness to appeal a verdict,
if such would not be feasible. These are all factors which we
must consider in the determination of whether the application
of the doctrine of collateral estoppel, in the absence of mutuality,
should be applied as a general rule in this jurisdiction.
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[33] |
The benefits garnered from applying collateral estoppel in any
cause must be balanced against the costs associated with its
application. The majosrisk linked to such an application is that
of an erroneous determination in the first case.
*fn14
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[34] |
The principles involved within this consideration have been well
expressed in the legal commentary in 46 American Jurisprudence
2d 569-570, Judgments, Section 402, as follows:
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[35] |
"The doctrine of res judicata may be said to adhere in legal systems
as a rule of justice. Hence, the position has been taken that
the doctrine of res judicata is to be applied in particular situations
as fairness and justice require and that it is not to be applied
so rigidly as to defeat the ends of justice or so as to work
an injustice.
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[36] |
"* * *
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[37] |
"Underlying all discussion of the problem must be the principle
of fundamental fairness in the due process sense. It has accordingly
been adjudged that the public policy underlying the principle
of res judicata must be considered together with the policy that
a party shall not be deprived of a fair adversary proceeding
in which to present his case. * * *"
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[38] |
Upon a considered review of the arguments presented, as well as
available cases and comment on the subject, we conclude that
the principle of mutuality as a prerequisite to the application
of collateral estoppel, as applied in this state, recognizing
the need in certain instances for the flexibility and exceptions
to such rule, has been responsive to the conflicting principles
of due process and judicial economy. We therefore opt to adhere
to such principle as a general proposition, while realizing that
there may well be other cases in which there are presented additional
exceptions which could be acceptable to this court upon the basis
of serving justice within the framework of sound public policy.
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[39] |
Whether or not we, in the future, may conclude it to be advisable
to adopt the nonmutuality rule as a general proposition, for
the present we reaffirm our prior general stance that collateral
estoppel may generally be applied only when the party seeking
to use the prior judgment and the party against whom the judgment
is being asserted were parties to the original judgment or in
privity with those parties.
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[40] |
Even though we currently entertain the thought of abandonment
of the general principle requiring mutuality of parties, and
within that broadened framework, we cannot accept the proposition
that "offensive nonmutual collateral estoppel" be applied in
actions involving issues of design negligence or defective design
of mass-produced products particularly when the former adjudication
of the issues arose out of a separate underlying incident.
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[41] |
Collateral estoppel precludes relitigation only when the identical
issue was actually decided in the former case. 18 Wright, Miller
& Cooper, Federal Practice and Procedure, Sections 4416-4417.
Thus, a trial court must decide, prior to applying collateral
estoppel, and appellate courts must review, whether the identical
issue was actually decided in the former case. In a design defect
case arising from separate underlying incidents, this would,
in most instances, be no easy task. Thus, as suggested previously,
the judicial resources sought to be saved in the name of judicial
economy, are expended on questions collateral to the case.
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[42] |
The danger is multiplied in cases such as this one where the issue
determined in the first litigation relates to a product's design.
This is due to the nature of the questions and the potentially
broad impact of their resolution. These questions are very technical,
requiring expert testimony to bring out the specifics. Also,
a jury's ultimate determination requires delicate balancing between
the design decisions actually made by the manufacturer and those
which are postulated as feasible within the industry at any given
point in time? Thus, the determination made by a jury in any
particular case will ofttimes not be free from doubt.
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[43] |
Just as the risk of an erroneous determination is increased by
the complex nature of design issues, the potential impact of
such a decision would be unfairly broadened by the offensive
application of nonmutual collateral estoppel. This could result
in a single jury, sitting in review of certain limited facts,
entering a verdict which would establish safety standards for
a given product for the entire country. It would not be prudent
to raise a decision made by one jury in the context of one set
of facts to the standard under which all subsequent cases involving
separate underlying factual circumstances are judged. See, e.g.,
Weinberger, Collateral Estoppel and the Mass Produced Product:
A Proposal, 15 New Eng. L. Rev. 1 (1979).
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[44] |
Additionally, even though we might accept the principle of the
offensive use of nonmutual preclusion as applied to product design
cases, applying the standards underlying Parklane, supra, and
as set forth in Restatement of Judgments 2d, Section 27, Comment
c, the appellees still could not prevail. A reading of all that
is before this court, concerning the prior case of Harrison v.
McDonough, supra, i.e., the federal trial court's opinion and
order, it may be determined that there were two totally separate
accidents, with two different models of a riding lawnmower manufactured
in different years by appellant manufacturer; there were different
operators of the equipment with perhaps totally different mechanical
capabilities; different terrain and weather conditions; also,
the same rules of law were not applicable in both states - Florida
had enacted a comparative negligence statute at the time of the
accident in that case, while Ohio still had the rule of contributory
negligence at that time; and, what is critically important to
the appellant, thsdiffering trial techniques and appellate determinations
that would have been made by legal counsel in the prior case
if it had been known that the judgment would have been utilized
in subsequent cases to estop a defense on the question of liability.
Without the necessity of further analysis of the differences
in this case and Harrison, we conclude that the appellees would
not be reasonably able to show the requisite "identity of issues"
for the application of nonmutual collateral estoppel.
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[45] |
In the overview, we hold that nonmutual collateral estoppel may
not be used to preclude the relitigation of design issues relating
to mass-produced products when the injuries arise out of distinct
underlying incidents.
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[46] |
Based on the foregoing, the judgment of the court of appeals is
reversed and the cause is remanded to the trial court for further
proceedings not inconsistent with this opinion.
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[47] |
Judgment reversed and cause remanded.
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[48] |
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[49] |
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Opinion Footnotes | |
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[50] |
*fn1
Subsequently, the Goodson family obtained a part interest in
the mower.
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[51] |
*fn2
Among other safety precautions, the operator's manual included
warnings not to give rides while mowing nor to allow individuals
near the mower while operating it.
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[52] |
*fn3
The reported decision is that of the federal district court denying
a motion for a judgment n.o.v.
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[53] |
*fn4
In Whitehead, the court, at page 112, stated:
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[54] |
"The second aspect of the doctrine of res judicata is `collateral
estoppel.' While the merger and bar aspects of res judicata have
the effect of precluding a plaintiff from relitigating the same
cause of action against the same defendant, the collateral estoppel
aspect precludes the relitigation, in a second action, of an
issue that has been actually and necessarily litigated and determined
in a prior action which was based on a different cause of action.
Restatement of the Law, Judgments, Section 45, Comment (c), and
Section 68(2); Cromwell v. County of Sac (1876), 94 U.S. 351.
In short, under the rule of collateral estoppel, even where the
cause of action is different in a subsequent suit, a judgment
in a prior suit may nevertheless affect the outcome of the second
suit." (Emphasis sic.)
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[55] |
*fn5
See, e.g., Norwood v. McDonald (1943), 142 Ohio St. 299 [27 O.O.
240]; State, ex rel. Ohio Water Service Co., v. Mahoning Valley
Sanitary Dist. (1959), 169 Ohio St. 31 [8 O.O.2d 1]; Grant v.
Ramsey (1858), 7 Ohio St. 157; Conold v. Stern (1941), 138 Ohio
St. 352 [20 O.O. 449]; Schimke v. Earley (1962), 173 Ohio St.
521 [20 O.O.2d 143]; Hixson v. Ogg (1895), 53 Ohio St. 361; Massillon
Sav. & Loan Co. v. Imperial Finance Co. (1926), 114 Ohio St.
523.
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[56] |
*fn6
See Schram v. Cincinnati (1922), 105 Ohio St. 324; Massillon
Sav. & Loan Co. v. Imperial Finance Co., supra; Shoemaker v.
Cincinnati (1903), 68 Ohio St. 603; Conold v. Stern, supra; Schimke
v. Earley, supra.
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[57] |
*fn7
See, e.g., B. R. De Witt, Inc. v. Hall (1967), 19 N.Y. 2d 141,
225 N.E. 2d 195; Hossler v. Barry (Me. 1979), 403 A. 2d 762;
Pat Perusse Realty Co. v. Lingo (1968), 249 Md. 33, 238 A. 2d
100; Oates v. Safeco Ins. Co. (Mo. 1979), 583 S.W. 2d 713; Peterson
v. Nebraska Natural Gas Co. (1979), 204 Neb. 136, 281 N.W. 2d
525; Bahler v. Fletcher (1970), 257 Ore. 1, 474 P. 2d 329; In
re Estate of Ellis (1975), 460 Pa. 281, 333 A. 2d 728; Parklane
Hosiery Co. v. Shore (1979), 439 U.S. 322.
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[58] |
*fn8
See, e.g., Momeau v. Stark Enterpises, Ltd. (1975), 56 Haw. 420,
539 P. 2d 472; Illinois State Chamber of Commerce v. Pollution
Control Bd. (1979), 78 Ill. 2d 1, 398 N.P.. 2d 9; Goolsby v.
Derby (Iowa 1971) 189 N.W. 2d 909; Home owners Fed. Sav. & Loan
v. Northwestern F. & M. Ins. Co. (1968), 354 Mass. 448, 238 N.E.
2d 55.
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[59] |
*fn9
See, e.g., Spettigue v. Mahoney (1968), 8 Ariz. App. 281, 445
P. 2d 557; Adamson v. Hill (1969), 202 Kan. 482, 449 P. 2d 536;
Norfolk & W Ry. Co. v. Bailey Lumber Co. (1980), 221 Va. 638,
272 S.E. 2d 217; Daigneau v. National Cash Register (Fla. App.
1971), 247 So. 2d 465.
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[60] |
*fn10
Bentham, Rationale of Judicial Evidence, 7 Works of Jeremy Bentham
171 (Bowring Ed. 1843); Currie, Mutuality of Collateral Estoppel:
Limits of the Bernhard Doctrine, 9 Stan. L. Rev. 281; Currie,
The Tempest Brews, 53 Cal. L. Rev. 25 (1965).
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[61] |
*fn11
1B Moore's Federal Practice (2d Ed.), 1805-1806, Paragraph 0.412(l];
Moore and Currie, Mutuality and Conclusiveness of Judgments,
35 Tulane L. Rev. 301 (1961); Greenebaum, In Defense of the Doctrine
of Mutuality of Estoppel, 45 Ind. L. J. 1 (1969); Note, Impacts
of Defensive and offensive Assertion of Collateral Estoppel by
a Nonparty, 35 Geo. Wash. L. Rev. 1010 (1967).
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[62] |
*fn12
In Parklane, the stockholders of the company sought to use a
determination by the district court in auction brought by the
Securities Exchange Commission (SEC) that the proxy statement
was materially false and misleading. The stockholders contended
that the defendant corporation was collaterally estopped from
relitigating issues resolved against it in the SEC suit.
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[63] |
In Parklane, while noting that "the problem of unfairness [to
a defendant] is particularly acute in cases of offensive estoppel,"
and admitting that "offensive use of collateral estoppel does
not promote judicial economy in the same manner as defensive
use does," the court nonetheless decided to endorse an approach
that would not prevent federal courts from applying offensive
collateral estoppel, unless considerations demonstrating unfairness
to a defendant are shown or such application is otherwise improper
under the circumstances. 439 U.S., at 329-331. The Supreme Court,
in its opinion, set forth many of the justifications and reasons
previously discussed in Bernhard v. Bank of America (1942), 19
Cal. 2d 807, 122 P. 2d 892, the landmark decision that discarded
mutuality and allowed defensive collateral estoppel, as well
as those discussed in Blonder - Tongue Laboratories, Inc. v.
University of Illinois Foundation (1971), 402 U.S. 313, where
the Supreme Court had approved the abandonment of mutuality in
a defensive context.
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[64] |
*fn13
This court stated, in pertinent part, at page 75, that:
|
[65] |
"It is our determination that appellees may not now relitigate
the issue of ownership and control of this hospital, all questions
pertaining thereto having been properly before this court in
Sears, supra. The pertinent appellees herein were represented
parties or were in actual privity with represented parties in
Sears and were accorded a full and fair day in court in that
proceeding."
|
[66] |
This court, in the stance of the facts presented in Hicks, stated,
at page 74:
|
[67] |
"It is clear that in Sears, the issue of the ownership and before
the court and that it was an control of this hospital was issue
which was directly confronted by the city of Cincinnati. All
of the facts noted by the lower courts in the instant case to
substantiate their conclusions that the state, rather than Cincinnati,
owned and controlled the hospital were the same facts which existed
at the time of Sears. In short, this court is now being asked
to relitigate the issue of ownership and control of the hospital
in the face of Cincinnati's repeated assertions in Sears that
it owned, operated and controlled the hospital.
|
[68] |
*fn14
As one commentator has said:
|
[69] | "The dangers of issue preclusion are as apparent as its virtues. The central danger lies in the simple but devastating fact that the first litigated determination of an issue may be wrong. The risk of error runs far beyond the proposition that most matters in civil litigation are determined according to the preponderance of the evidence. The decisional process itself is not fully rational, at least if rationality is defined in terms of the formally stated substantive rules. Considerations of sympathy, prejudice, distaste for the substantive rules, and even ignorance or incapacity may control the outcome. Trial tactics are consciously adapted to these concerns, but efforts to reduce the irrationality may fail or backfire and efforts to exploit it may succeed." 18 Wright, Miller & Cooper, Federal Practice & Procedure 142, Section 4416. |