Joseph DiCenzo worked for Wheeling-Pittsburgh Steel Corporation from the 1950s until 1993. He worked as a tin-line laborer, a tractor operator, a plier, a welding-machine operator, and a tin-line operator. During all of this time, without his knowledge or consent, he was surrounded by asbestos laden insulation products. A good portion of these products originated with George V. Hamilton, Inc. (“Hamilton”), a company which did not manufacture the asbestos filled insulation products but which did, nevertheless, supply many of them to the mill.
Several years after leaving the mill, DiCenzo was diagnosed with mesothelioma.
He passed away in 1999, as a direct result of this illness, which has been linked to asbestos. DiCenzo’s widow joined together with several other plaintiffs in a lawsuit against Hamilton as well as approximately 90 additional defendants. The grounds for the suit included, among several additional claims, failure to warn, breach of warranty, design defects, and product liability, based on the theory of strict liability. Hamilton filed a summary judgment motion demanding a dismissal of the strict liability claim. To support the motion, Hamilton claimed that DiCenzo’s strict liability argument could not be applied to Hamilton’s pre-1977 behavior because the strict liability standard for product liability had not existed at the time. In fact the standard was not created until 1977 in the case of Temple v.
Wean 590 Ohio St.2d 317 (1977). Consequently, the strict liability standard could not be applied retrospectively to outlaw conduct that had been perfectly legal at the time it was performed. The lower court agreed and the case was dismissed.
The court of appeals, however, disagreed and reversed the lower court’s dismissal. The Ohio Supreme Court agreed to hear the case. A good portion of the Ohio Supreme Court’s opinion is based on Chevron Oil Co. v. Huson, 404 U.S. 97, 92 U.S. 349, 30 L.Ed.2d 296 (1971) a United States Supreme Court case that predates both Temple and DiCenzo, and that sets the standard for determining when cases are to be viewed as retrospective and when they are to be considered prospective only. To apply the Chevron case and to reach the decision that it does, the Ohio State Supreme Court discusses the origin of strict liability as it relates to product liability, as well as the nature of privity and the application of breach of warranty claims.
The Court’s Opinion Because Chevron is central to the dispute before this court, we begin our analysis by examining its holding . . . The court held that the answers to three questions determine whether a decision should be applied prospectively only: 

(1) Does the decision establish a new principle of law that not clearly foreshadowed? 

(2) Does retroactive application of the decision promote or hinder the purpose behind the decision? and 

(3) does retroactive application of the decision cause an inequitable result? Chevron Oil, 404 U.S. at 106–107, 92 S.Ct. 349, 30 L.Ed.2d 296 . . . We now apply the Chevron Oil test to determine whether prospective-only application of Temple is justified.
1. Nonmanufacturing-Supplier Liability was an Issue of First Impression in Temple v. Wean.
(30) Historically, a lack of privity between consumers and manufacturers prevented consumers from recovering damages for a defective product under a breach of warranty claim against the product’s manufacturer . . . However, in a series of cases issued from 1958 to 1966; this court gradually relaxed certain longstanding legal rules that made consumer actions against manufacturers more viable.
(31) In Rogers v. Toni Home Permanent Co. 167 Ohio St. 244, 4 O.O.2d 291. 147 N.E.2d 612, a hair product caused a consumer personal injuries. The consumer filed suit against the manufacturer, alleging negligence, breach of implied warranty, and a breach of express warranty based on the manufacturer’s advertisements that the product was safe . . . The issue before then court was whether the consumer could maintain a claim for breach of an express warranty . . . The court recognized that he prevailing view was that privity of contract was required to bring an action alleging the breach of express warranty. However, the court held that the manufacturer’s advertisements about its product safety effectively created an express warranty upon which the consumer could rely and that her breach of warranty claim could arise in tort . . . Thus, the court held that a lack of privity did not prevent her claim for breach of an express warranty against the manufacturer for the defective hair product.
(32) In Inglis, 3 Ohio St.2d 132, 32 O.O2d 136, 209 N.E.2d 583, the plaintiff succeeded in recovering damages for losses caused by a defectively manufactured automobile under a theory of breach of express warranty. This court affirmed, extending the rule it had announced in Toni (permitting express warranty claim for personal injury to the consumer in Inglis for recovery of damages against the manufacturer caused by the defective automobile.) 

(33) Finally, in Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227, 35 O.O.2d 404, 216 N.E.2d 185, the court held that even absent privity, a consumer could maintain a claim of breach of implied warranty against the manufacturer for injuries caused by its defective product.  

(34) In Lonzrick the plaintiff was injured when steel joists collapsed and fell on him . . . The plaintiff sued the manufacturer of the steel joists in tort based upon a breach of an implied warranty . . . The issue was whether the plaintiff, who was injured by a defective product could maintain an action alleging breach of implied warranty based on tort, because unlike in Toni and Inglis, the manufacturer made no advertised representations about the metal beams. The court held that advertising was not relevant to determining whether a manufacturer should be liable. More critical to the analysis was that by placing the product into the stream of commerce, the manufacturer had implicitly represented the product to be of “good and merchantable quality, fit and safe for the ordinary purposes for which steel joists are used.” . . . Thus the court held that the plaintiff could maintain a claim for breach of an implied warranty against the manufacturer based in tort.
(35) Thus, in Toni, Inglis, and Lonzrick, the court gradually relaxed the long-held legal requirement of privity, held that a breach-of-warranty claim could arise out of tort, and recognized that a claim for breachof-
warranty was viable when the manufacturer did not advertise. The gradual evolution in the products liability law was aimed at making manufacturers more accessible to consumer-product lawsuits. Indeed, it was the lack of a contractual relationship between consumers and manufacturers that spurred the products-liability evolution in the first place . . . These cases epitomized the, “slow, orderly and evolutionary development” of Ohio products-liability law against manufacturers.
(36) In contrast, Temple v. Wean marked a relatively large step in the further development of the products-liability law in its holding. “One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if (37) “

(a) The seller is engaged in the business of selling such a product, and (38) “

(b) It is expected to and does reach the consumer without substantial change in the condition in which it is sold.”
(39) Although plaintiff’s evidence in temple failed to prove liability against multiple defendants, the court’s analysis makes clear that for the first time, the court defined a rule that allowed nonmanufacturing suppliers to be liable for defective products that they sell. We begin our review of the analysis in Temple by examining the facts.
(40) Betty Temple was injured by a punch press.
Wean United Incorporated manufactured the punch press, which was sold to General Motors Corporation (“G.M.”). G.M. in turn sold the punch press to Turner Industries, and Turner sold it to Wean, the plaintiff’s employer. After her injury, Temple sued Wean United, as well as the subsequent punch-press vendors, G.M., and Turner.
(41) Temple adopted 2 Restatement of the Law 2d, Torts (1965), Section 402A, holding that “a plaintiff must prove that the product was defective at the time it left the seller’s hands” for the seller to be held liable . . .
However, the evidence showed that the press had been modified after it had been sold to the plaintiff’s employer and that the modification was the cause of the plaintiff’s injury . . . The circumstance “absolved the manufacturer, Wean, and the subsequent vendor G.M., from strict tort liability . . . G.M. was a nonmanufacturing seller of the press.
(42) Thus, Temple clearly defined a new rule that nonmanufacturing suppliers of products could be held liable for injuries caused by those products. Prior to Temple, no holding form this court had permitted the seller of a product who was not also the manufacturer to be liable for a defective product under breach of warranty theory based in tort absent privity, and none foreshadowed that such a holding was on the horizon.
Clearly, Temple addressed an issue of first impression that had not been foreshadowed in prior cases.
2. Retroactive Application of temple Neither Promotes Nor Hinders the Purpose Behind the Products-
Liability Law.
(43) The second prong of the test in Chevron Oil asks whether applying the decision retroactively promotes or hinders the purpose behind the rule stated in the decision . . . We conclude that retroactive application of temple will neither promote nor hinder the purpose behind products liability law.
(44) A primary “purpose of the strict liability doctrine is to induce manufacturers and suppliers to do everything possible to reduce the risk of injury and insure against what risk remains.”. . .
(45) Products containing asbestos have not been manufactured or sold for approximately 30 years. The time for making these products safer has come and gone. Thus, retroactively applying temple to nonmanufacturing sellers of asbestos products will not promote the purpose of making those products safer.
(46) Moreover, one of the expressed reasons for the adoption of Section 402A of 2 Restatement of the Law 2d, Torts, in temple was that “there are virtually no distinction between Ohio’s “implied warranty in tort’ theory and the Restatement version of strict liability in tort and * * * the Restatement formulation, together with its numerous illustrative comments, greatly facilitates analysis in this area.” . . . Again, applying Temple retroactively to impose liability on a nonmanufacturer supplier of asbestos products would neither promote nor impede the purpose of facilitating the analysis of products-liability law..........

Question

1. What is the difference between an express and an implied warranty? How are express warranties created in sales law? Explain.
2. How are implied warranties created in sales law? What types of implied warranties are recognized in sales law? Explain.
3. The first step in the gradual evolution of the product liability theory involved a modification of express warranty. In general, how is an express warranty created in sales law? In what way was the warranty made “express” in the case of Rogers v. Toni Home Permanent? Explain.
4. How did the case of Inglis v. Am. Motors Corp. extend the express warranty claim established by the court in the Toni case? Explain.
5. The next step in the development of the product liability theory involved a modification of implied warranty. In general, how is an implied warranty created in sales law? Which type of implied warranty is breached in the Lonzrick case? Explain.

6. The court notes that “Temple v. Wean marked a relatively large step in the further development of the products-liability law.” What “relatively large step” was taken by the court in advance in the case of Temple v. Wean? Explain.
7. The court decided not to apply the rule created in the case of Temple v. Wean retrospectively. What does it mean to apply a rule retrospectively.? What does it mean to apply a rule prospectively? Explain.
8. The court gives three reasons for not applying the rule created in Temple v, Wean retrospectively. What are those three reasons? Explain.
9. What is the public interest promoted by the courts in the line of cases discussed at length in DiCenzo v. A-Best Products Company Inc.? Explain.

10. What public policy tactic is at use in the case of DiCenzo v. A-Best Products Company Inc.? Explain.