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Review the court caseWoeste v. Washington Saloon

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Brief theWoeste v. Washington Salooncourt case.

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Woeste v. Washington Platform Saloon & Restaurant, 163 Ohio App.3d 70 (2005) 836 N.E.2d 52, 2005 -Ohio- 4694 Attorneys and Law Firms 163 Ohio App.3d 70 Court of Appeals of Ohio, **55 Clifford C. Masch, Cleveland and Timothy B. First District, Hamilton County. Schenkel, Cincinnati, for appellees. WOESTE, Admr., Appellant, William E. Santen Jr., Cincinnati, for appellant. Opinion WASHINGTON PLATFORM SALOON SYLVIA S. HENDON, Judge. & RESTAURANT et al., Appellees, et al. *73 *163 Plaintiff-appellant, Kimberly Woeste, No. C-050030. administrator of the estate of Thomas Woeste, has appealed, on behalf of the estate's beneficiaries, the trial court's Decided Sept. 9, 2005. grant of summary judgment without explanation in favor of defendants-appellees, Washington Platform Saloon & Synopsis Restaurant ("Washington Platform") and Johnny's Oyster and Background: Administrator of restaurant patron's estate Shrimp, Inc. (hereinafter, " Johnny's"). brought action for negligence and strict liability against restaurant and company that harvested oysters, seeking recovery after patron died as result of contracting the bacteria vibrio vulnificus after eating raw oysters at restaurant. The Vibrio Vulnificus Court of Common Pleas, Hamilton County, No. A-0105244, (1 2} Thomas Woeste died as a result of contracting granted summary judgment in favor of restaurant and the bacteria vibrio vulnificus after eating raw oysters at company. Administrator appealed. Washington Platform. Vibrio is a naturally occurring bacteria in oysters that are harvested in warm waters. The oysters ingest the bacteria as they filter feed. Vibrio has no effect Holdings: The Court of Appeals, Sylvia S. Hendon, J., held on the large majority of the population; however, it can that: cause death or serious bodily injury to certain people with weakened or impaired immune systems. Woeste suffered restaurant's warning concerning risks associated with eating from Hepatitis C and cirrhosis of the liver, making him raw oysters was adequate; particularly susceptible to vibrio. raw oysters that contained vibrio were not "adulterated," for {13} Woeste consumed approximately one dozen raw oysters purposes of state Pure Food and Drug Law; while at Washington Platform. The oysters Woeste consumed were harvested in Texas by Johnny's. Washington Platform'scompany did not breach its duty to keep oysters cool; company's warning concerning risks associated with eating raw oysters was adequate; and company had duty to warn consumers of risks associated with eating raw oysters. Airmed. '.'.'L '- T _ .l I-'vl were harvested in Texas by Johnny's. Washington Platform's menu contained a warning regarding the dangers of eating raw shellsh. Woeste, however, ordered the oysters without opening the menu and reading the warning. Woeste died one week after contracting vibrio from the raw oysters. {" 4} Appellant contends that summary judgment was improper because genuine issues of material fact were present in the allegations against both Washington Platform and Johnny's. Appellant alleges that \\Vashington Platform was both negligent and strictly liable for failing to adequately warn of the dangers of eating raw oysters and that the restaurant violated Ohio's Pure Food and Drug Law1 by receiving and delivering adulterated oysters. Appellant Woeste v. Washington Platform Saloon & Restaurant, 163 Ohio App.3d TD [2005] 836 N_E_2d 52. 2005 Ohio 4694 further alleges that Johnny's was negligent for breaching a duty to keep the oysters reigerated after harvesting them, that Johnny's should have been held strictly liable for failure to warn of the dangers associated with the oysters, and that Johnny's violated Ohio's Pure Food and Drug Law by receiving or distributing *74 adulterated oysters. Summary judgment was granted on all the estate's claims. {'1 5} Summary judgment may appropriately be granted when there exists no genuine issue of material fact, the movant is entitled to judgment as a matter of law. and the evidence. when {' 9} \"[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; [and] {r 10} "(b) The manufacturer failed to provide the waming or instruction that a manufacturer exercising reasonable care would have provided concerning that *75 risk. in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages viewed in favor of the nonmoving party= permits only one reasonable conclusion and that conclusion is adverse to the nonmoving party.2 We review grants of summary judgment de not-'0: without any deference to the trial court's decision.: We now address the claims against each appellee in turn. \\Vashington Platform {T 6} Appellant claims that Washington Platform was both negligent and strictly liable for failing to provide an adequate warning regarding the dangers associated with raw oysters. \"The standard 1\"545 imposed upon the defendant in a strict liability claim grounded upon an inadequate warning is the same as that imposed in a negligence claim based upon inadequate warning."Jr {T 7} Ohio has adopted Section 402A of the Second Restatement of Torts regarding strict liability. This section provides: \"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 "' '3' *5\" Thus, for strict liability to be imposed. the product must be defective, and the defect must make the product unreasonably dangerous. A product may be defective because of an inadequate warning even if it contains no design or manufacturing defect.5 For purposes of the claim against Washington Platform. we address only whether the warning provided was adequate. We reserve our analysis regarding the necessity of a warning for our discussion of the claim against Johnny's. {'1 8} R.C. 2307.76 provides the standard for determining when an inadequate warning makes a product defective. The following elements must be shown: 1 a L. and in light of the likely seriousness of that harm.\" {r 11} After extensively reviewing the record, we conclude, as a matter of law, that no liability could have been imposed on Washington Platform for an inadequate warning. Washington Platform's menu contained a warning located directly below all the oyster entrees: Consumer Information: There may be risks associated when consuming shell sh as in the case with other raw protein products. If you su'er from chronic illness of the liver, stomach or blood or if you are pregnant or if you have other immune disorders. you should eat these products tlly cooked. Appellant alleges that this warning was not adequate, because it did not warn of the possibility of death. We disagree. The warning complied with the standard established in R.C. 230'.'6. Washington Platform was aware of the dangers associated with the oysters. This was evidenced by the warning present in its menu. We are persuaded that the warning provided was one that a manufacturer exercising reasonable care would have issued. It adequately put a patron on notice of the risks associated with eating raw shellsh, including raw oysters. {r 12} Other states have found substantially similar warnings to be adequate. Louisiana mandates a warning that contains the language \"[t]here may be a risk associated with consuming raw shellsh as is the case with other raw protein products. If you suifer from chronic illness of the liver, stomach or blood or have other immune disorders, you should eat these products rlly cooked.\"6 This warning is \"57 nearly identical to the warning provided by Washington Platform; infact, Washington Platform's warning was slightly more detailed because it included the category of pregnant women, who are not listed in the Louisiana warning